WORST CASE SCENARIO

The Bulletin , January 25, 2001 - by Alan Hope

A tale of rape, sequestration and murder has become one of legal bungles and condition of detention. Four-and-a-half years after the arrest of Marc Dutroux, Alan Hope considers the possibility that Belgium's most notorious prisoner could one day walk free

Is there a chance that Marc Dutroux, Belgium's most hated criminal, could walk free before his case even starts? Some people are beginning to think the unthinkable, and there are grounds for believing that Dutroux's release, although totally improbable, is, in the words of one expert, "a real possibility".

On February 1, a lawyer representing Marc Dutroux will demand that an Arlon judge visit his client in the town's prison, to take stock of the conditions under which he is detained, and order the Belgian state to rectify a situation described in papers lodged with the court as "inhuman and degrading". He will also ask for the state to pay Dutroux reparation of 50,000 BF per day until his conditions are improved.

Dutroux escaped from custody while visiting the Justice Palace in Neufch‰teau in April 1998, and later claimed the escape was staged to draw attention to the conditions in which he is being held.

He is housed in a separate wing of the prison, in a modified cell whose door has been replaced by a plastic and steel-grid window to allow constant surveillance. The furniture is bolted down, and his cell light is switched on every seven-and-a-half minutes through the night to allow guards to check on him. Dutroux had previously refused permission for prison authorities to install a video camera in his cell.

Since his escape protest apparently did not the desired effect, he is now bringing a case against the state. This part of his case has been taken up by Marc N�ve, a Li�ge lawyer who heads the Committee for the Prevention of Torture in Prisons. Dutroux's counsel alleges that his regime breaches human rights,and is causing physical and mental distress which undermines the accused's ability to prepare a defence for himself. (Dutroux is also represented by Liège-based Julien Pierre and Lille-based François Robinet. His legal expenses are met out of public funds.)

The Brussels-based Human Rights League is taking an interest in the case, although it is not prepared yet to intervene, according to director Patrick Charlier. "Whatever the charges against someone, there is no excuse for keeping them under inhuman conditions," he told me. Dutroux's conditions are, it is claimed by the court brief, unique in Belgium, and resemble the suicide-watch applied to prisoners who are considered at risk of harming themselves. Standard procedure in Britain, for instance, is for high-risk prisoners to be checked every 15 minutes. Many, however, are kept in bare cells and obliged to wear special overalls which, like their bedsheets, cannot be converted into a noose. Dutroux wears his own clothes, and his cell is equipped with a radio-cassette, a television (the screen covered with an unbreakable plastic sheet), a hotplate and a typewriter.

His case against the Belgian state is the latest chapter in a saga which started on August 12,1996, when Dutroux, a convicted rapist on parole, was arrested in connection with the disappearance three days earlier of Laetitia Delhez in Bertrix, near Neufch‰teau. After stonewalling for two days, Dutroux admitted his role in her kidnapping and led investigators to his house in Marcinelle, close to Charleroi, where Laetitia was being held in a makeshift cell in the basement - together with Sabine Dardenne, who had vanished in May 1996 from Kain, near Tournai.

So began "l'affaire Dutroux". In the days that followed, police were to discover the bodies of Julie Lejeune and Melissa Russo, two children missing since 1995, in the garden of another of Dutroux's houses. Also buried there: Bernard Weinstein, a French petty criminal Dutroux admitted to killing in November 1995. Later, they also found the bodies of teenagers An Marchal and Eefje Lambrecks, who went missing at the coast in August 1995.

Since those seismic revelations, the case has seen a parliamentary commission of enquiry which looked at police conduct during their (failed) investigations of allegations against Dutroux, the mobilisation of 300,000 people in the streets of Brussels and more nationwide to protest official negligence, and the gradual- perhaps inevitable - decline in public interest from the peak of the White March in October 1996 to today.

In all that time, however, very little has been revealed about the actual facts of the case against Dutroux (and his coaccused: see below). On the one hand, investigative proceedings in Belgium are confidential and investigating magistrate Jacques Langlois has imposed a law of silence on details of progress. On the other, the workload for the team investigating the case is enormous, even after a host of charges relating ot car theft, stolen property and insurance fraud were hived off to a team in Nivelles.

The workload is apparently so great that at latest estimates, offered by Justice Minister Marc Verwilghen to the parliament's justice committee in November, the case dossier will not be completed for at least another year - some time in March 2002. Then, it will be studied by the prosecutor's office, and opened up to civil parties who may call for additional leads to be followed up. According to Verwilghen, the case is not likely to come before the Assize court in Arlon before September next year.

Just last week, the delay threatened to lengthen when Michel Bourlet, the chief prosecutor handling the case, ordered lab tests done on up to 6,000 hair samples found in the cell where Dutroux's victims were kept and in the Renault van used in two kidnappings. His aim, he said, was to identify any visitors to the cell other than those already known.

But Bourlet's decision was attacked by defence lawyers who said the tests would cost up to 100 million BF to carry out, and could take years, although the prosecutor's office has imposed a six-month deadline, and will use labs in Belgium and abroad for the work.

The move, which was opposed by Langlois, seems to suggest Bourlet is still investigating the possibility that Dutroux was acting on behalf of a sex-crime ring. According to one expert I spoke to for this article, that conviction - rejected by Langlois, who believes that Dutroux is a "lone predator" - has contributed to many of the delays experienced so far.

By the time Verwilghen's official (if conservative) timetable comes around, Dutroux will have been in prison for six years awaiting trial.

Even by Belgian standards, that's an outrageous delay; on average, a trial before the Assize Court starts about two years after an arrest is made, according to Philippe Toussaint, editor of the Journal des Procès. He describes the six-year delay as "completely regrettable" and cannot think of a precedent in Belgium.

It probably makes a difference that Dutroux is now no longer in preventive detention (the equivalent of remand) but serving a five-year sentence for offences committed during his 1998 escape from custody. In effect, the clock stopped ticking in December last year, when his sentence was confirmed on appeal. But even at that point, his detention without trial had extended to four years and four months.

There are strong grounds for arguing that that delay is in breach of the European Convention on Human Rights. In September 1984, a young man was arrested on suspicion of the murder of Christine Van Hees in an abandoned mushroom factory in Auderghem. He was held in detention for three years and two months before being released and the charges dropped. He took a case against the Belgian state to the European Court of Human Rights, and won.

The Court found the arguments used to justify the detention insufficient- such as the atrocious nature of the crime and the danger represented to the public. In other cases, such as one ruled on last year, a detention of two-and-a-half years was declared a breach of the Convention of Human Rights - but the circumstances in that case were considerably less appalling.

So far, Dutroux's lawyers have only hinted at the possibility of raising an appeal to the European Court, but Toussaint thinks it likely they will bring the detention up when legal submissions are heard at the opening of the trial. The presiding judge will have to rule on the
expected submission calling for the trial to be annulled, in the knowledge that the case for a breach of the Convention is a strong one.

As to the likelihood of the trial actually being called off, Toussaint says there is one school of thought which calls for such a breach to be taken into account in mitigating the eventual sentence
handed down. Considering the number of life sentences Dutroux could expect to receive if found guilty on all counts, that's hardly likely to matter much. "But," Toussaint said, "another doctrine
holds that, if the delay in bringing the case to trial is considered to have exceeded a reasonable time, that would lead to the whole case being declared inadmissible." If that were to happen, Dutroux could walk free, at least from the kidnapping and murder charges.

Another threat to the case comes, ironically, from a statement made by a judge in a case related to Dutroux's escape. The two gendarmes who were supposed to be guarding him when he fled, Dominique Bouvy and Alain Angelinus, were accused of negligence, but the case against them was thrown out before coming to court. The reason for that is that the ruling magistrate commented that they had been accused and presumed guilty by the press and by ministers. This, magistrate Francis Moinet said, "risked compromising the chance of a fair trial".

The implications of that conclusion for Dutroux - whose case has been discussed in the media for years, and whose guilt was certainly presumed in the two Dutroux Commission reports signed by the present minister of justice and endorsed by Parliament - are frightening. Belgian practice, whereby case details are freely discussed in the press pre-trial, are often shocking to Anglo-Saxon eyes. In the British system, for example, the Court of Appeal in 1992 overturned the life sentences of two sisters, Lisa and Michelle Taylor, accused of murdering the wife ofMichelle's lover. The Court ruled that press coverage before the trial had created a climate which made a fair trial impossible. The sisters went free.

The issue of prejudicial press coverage affecting a trial has no precedent in Belgium, according to Toussaint. But while the case of the two gendarmes concerned far lesser charges than the case against Dutroux, he said, "Under the law, they're comparable." In other words, the comments in the gendarmes' case may be cited as a precedent by Dutroux's counsel.

Can Marc Dutroux receive a fair trial in Belgium? Are there still 12 citizens whose opinions on his guilt are not already formed as a result of years of press coverage?

The honest answer to both questions is probably "no". The trial will, most likely, go ahead, and Dutroux will go to prison for life. But this case raises questions for the justice system which have not even begun to be addressed.

The accused

Marc Dutroux has admitted killing Bernard Weinstein. He admits kidnapping, sequestering and raping An and Eefje, but alleges that Weinstein killed them. Dutroux also admits kidnapping,
sequestering and raping Sabine and Laetitia. He denies kidnapping Julie and Melissa, accusing instead Weinstein and Lelievre. He admits to sequestering them, but denies a role in their deaths,
which he alleges occurred because his wife failed to feed the children while he was in jail on theft charges. He maintains he tried to save the life of Melissa when he was released, but in vain.

Aside from Dutroux himself, the case involves four other defendants:

Michel Nihoul, a shady businessman, is now free from prison and living in Brussels, having been released from remand in January 1997 to serve a three-year sentence for charity fraud. He was released in December 1999, despite an attempt by Minister Verwilghen to rescind his parole on technical grounds.

Nihoul continues strenuously to deny his involvement in Dutroux's crimes, claiming he went along with discussions on setting up a trafficking operation in prostitutes in order better to inform on Dutroux to the police.

In December last year, Nihoul was interviewed for the first time by Langlois. A special unit based in Brussels had previously carried out an investigation into Nihoul's affairs. According to leaked reports, Nihoul was questioned about papers seized from his office in 1996.

Nihoul still faces charges of involvement in the kidnapping of Laetitia Delhez, one of the two victims who survived. He fully expects to see the charges dropped before he even comes to trial, he told me last year.

Michele Martin, Dutroux's wife, is, like his sidekick Michel Leli�vre, still on remand on the original charges of complicity in kidnapping.

Those two now become the main focus of a possible complaint to the European Court of Human Rights in Strasbourg, which would almost certainly see the Belgian state condemned for excessive delay in bringing them to trial.

Whereas Dutroux's detention ended with his sentence for the escape charges, Martin and Leli�vre remain on remand charged with complicity in the kidnappings, while Lelievre faces charges for the murder of An and Eefje and Julie and Melissa. While he admits to his part in the kidnappings of An, Eefje, Sabine and Laetitia, he denies he even knew Dutroux in June 1995, when Julie and Melissa disappeared.

Michel Oiakostavrianos was arrested several days after the Dutroux case broke and charged with murder, kidnapping and conspiracy. He was released from custody 11 months later, in June 1997, and although the charges remain on the table, he is considered a marginal figure in the case.

Several others remain charged with offences connected to the car-theft case being handled out of Nivelles. They include Georges Zicot, a police officer now back at his desk in the Justice Palace in Brussels.

The two officers who let Dutroux escape join their colleagues who were pinpointed for blame by the Dutroux Commission report for the failures which allowed Dutroux to carry on kidnapping and killing. Not one single magistrate or gendarme has been charged with an offence. A handful of internal disciplinary charges have resulted, in one case, in a reprimand and, in another, the docking of three days pay.

Police reform fallout

An effect that could not have been predicted when this case started is the implication for the detectives of the introduction of a single federal police force in January this year.

When Dutroux was arrested, the idea of a single police force was a pipe-dream. Turf-wars between the gendarmerie and other forces had contributed, it emerged, to the delay in arresting him even when his activities were strongly suspected. It looked to some, with hindsight, like kismet that he was finally arrested by Neufch‰teau, a provincial office too small to warrant a judicial police presence and where the gendarmerie, relieved of the need to defend their territory, did a job their colleagues in Liège and Charleroi could not.

In fact, it was Dutroux's escape from custody which gave the final impetus to a vague plan that had been floating around for years. The failure of the gendarmerie to keep Dutroux in custody, coming on top of many failures before his arrest, led government and opposition parties to push through a sweeping reform of the police.

At the moment, the Dutroux team consists of 60 gendarmes and 13 officers from the judicial police (JP), seconded from their bases in French-speaking Belgium and Brussels, says Major Marcel Guissard, who coordinates the police team in Neufch‰teau. But some of the gendarmes - estimated at more than half - come from local brigades, and may intend to return to the place reserved for them in the local wing of the new single police force. If that happens, they will be hard to replace with judicial wing officers coming in at such a late stage.

The JP officers automatically join the judicial section of the federal police, as will 13 of the gendarmes. They had to attend a two-month reorientation course at the end of last year, reducing the effective manpower of the team.

That leaves around 50 former gendarmes whose fate is still uncertain. Although they can remain on the team until the case is over, that could have career implications, as they return to new units nearly two years after reorganisation. "They need assurances," says Guissard.

If those officers choose to leave, they could be replaced, but then the enquiry would suffer from an injection of new people who would need time to acquaint themselves with four-and-a-half years of investigative dossiers. "The effect would be very negative," warns Major Guissard.

The same problems, incidentally, are being experienced by the separate team of investigators employed at Nivelles on Dutroux's car-trafficking case.